How far should the bar on citizen suits extend under section 309 of the Clean Water Act?

I. INTRODUCTION

In an effort to increase enforcement actions, Congress amended the Clean Water Act (CWA)(1) in 1987 to include a new administrative penalty section that allows agencies to assess civil penalties.(2) This section also includes provisions that allow certain administrative enforcement actions to preclude a citizen suit.(3) An analysis of this provision gives some insight into the question that existed in the courts concerning whether an administrative enforcement action could be considered a "court" under [sections] 505(b)(1)(B) of the Act and could thus preclude a citizen suit.(4) The provision precludes a citizen suit if 1) the Administrator of the Environmental Protection Agency (EPA) or the Secretary of the Army has commenced and is diligently prosecuting an action for an administrative penalty, or 2) a state has commenced and is diligently prosecuting an action under state law comparable to [sections] 309(g), or 3) a violator pays a penalty assessed under [sections] 309(g) or comparable state law.(5)

This new provision has resulted in many questions. The most significant question regards how far the bar on citizen suits extends. Because neither the language of [sections] 309(g) nor its legislative history clearly answer this question, conflict among the circuits has resulted which needs to be resolved.

The Ninth Circuit has answered this question in two recent decisions by taking a narrow view as to when citizen suits are barred. It first dealt with [sections] 309(g) in Citizens for a Better Environment-California v. Union Oil Co. of California (UNOCAL),(6) and then again in Knee Deep Cattle Co. v. Bindana Investment Co.(7) These cases reveal the conflict among the circuits and the reasoning used by the venous courts when interpreting [sections] 309(g)(6)(A). Therefore, this chapter will outline the cases discussed in UNOCAL and in Knee Deep, in addition to discussing the two Ninth Circuit cases themselves.

This chapter will discuss how the circuits have interpreted [sections] 309, ranging from a broad interpretation of preclusion, as in the First Circuit,(8) to a narrow interpretation, as in the Ninth Circuit.(9) Neither interpretation is without fault, but Congress failed to make clear which is correct under the provision. Then, more specifically, this chapter will consider 1) the various requirements for state comparability, 2) whether a penalty is required, and 3) the purpose of and the limitations on the citizen suit bar.

This chapter recommends that the conflict be resolved and suggests that Congress amend [sections] 309(g). Congress needs to delineate exactly which administrative actions preclude a citizen suit. Furthermore, Congress needs to define the meaning of the phrase "comparable state law" by setting out the requirements that the state provisions must contain. Finally, Congress needs to set out the exact purpose of the citizen suit bar. A clear congressional purpose will enable courts to interpret these provisions in a more uniform manner.

II. THE DILEMMA OF "WHAT IS A COURT UNDER [sections] 505(b)(1)(B) AND A PARTIAL RESOLUTION OF THE ISSUE BY THE 1987 AMENDMENTS

Section 505(b)(1)(B)(10) was the original bar to citizen suits under the Clean Water Act (CWA). It was patterned after a similar provision in the Clean Air Act (CAA).(11) The CWA clause provides that

[n]o action may be commenced . . . under subsection (a)(1) of this section

[the citizen suit provision] . . . if the Administrator or State has

commenced and is diligently prosecuting a civil or criminal action in

a court of the United States, or a State to require compliance with the

standard, limitation, or order, but in any such action in a court of the

United States, any citizen may intervene as a matter of right.(12)

Questions originally arose as to what could be considered a court The issue was whether administrative actions by a state or the United States could constitute a court and thus bar citizen suits. The courts answered this question in differing ways.

The first court to interpret the provision in the context of the CAA held that "an administrative board may be a `court' if its powers and characteristics make such a classification necessary to achieve statutory goals."(13) The Third Circuit, however, ultimately found that the Environmental Hearing Board was not a "court"(14) Most federal courts have simply read the plain language of the section and determined that Congress only intended for judicial proceedings in an actual court of law to bar citizen suits, and did not intend administrative proceedings to bar citizen suits.(15)

In 1987, Congress amended the CWA to include new administrative penalty procedures allowing agencies to assess civil penalties in an effort to increase enforcement actions.(16) Along with these penalty provisions, however, Congress also included a bar on citizen suits when the states or EPA initiated certain administrative enforcement actions.(17) Although [sections] 309(g)(6) did provide some assistance in answering the question discussed above, by avoiding this question for certain administrative actions, it has raised even more questions concerning the scope of the bar.

III. BACKGROUND OF THE 1997 AMENDMENTS AND THE PROCEDURES OF [sections] 309(G)

The 1987 Amendments resulted from efforts by Congress to balance two opposing concerns: allowing citizen suits to continue as a proven enforcement tool while preventing violators from being subject to dual enforcement actions or penalties for the same violation.(18) The newly created [sections] 309(g) allowed Clean Water Act (CWA) prosecutors to assess administrative penalties.(19) This provision was not intended to decrease judicial enforcement, but instead was intended "as a complement to our enforcement tools so that we can most efficiently and effectively assure compliance with the Clean Water Act."(20) The legislative history indicates that the administrative penalties in [sections] 309(g) provide a stronger remedy than administrative orders, but that the penalty actions would not be utilized when injunctive relief or specific performance is necessary to cease ongoing violations.(21) The administrative procedures of [sections] 309(g) were "designed to address past, rather than continuing, violations of the Act"(22) and to increase enforcement actions, because these penalties "could provide greater deterrent value than an administrative order for a violation that does not warrant the more resource intensive aspects of judicial enforcement."(23)

The provisions of [sections] 309(g) contain several safeguards to prevent abuse of administrative authority. This section sets out several procedures that the agency must follow before issuing an administrative penalty order. The Environmental Protection Agency (EPA) must first consult with the state in which the violation occurs.(24) It also must give notice of its proposed actions to the "person to be assessed" and allow such person thirty days to request a hearing on the proposed order.(25) In addition, the agency must "provide public notice of and reasonable opportunity to comment on" the proposed order.(26) Finally, any individual who comments on the proposal must also be given notice of any hearing to be held, in which they shall have an opportunity to be heard.(27)

In addition, Congress provided "an added safeguard to assure that the Agency assesses appropriate penalties for violations of the Act" by allowing both administrative and judicial review of these orders.(28) If no hearing was held before the penalty assessment, any person who commented on the proposed penalty assessment has thirty days after issuance of the administrative penalty order to petition to set aside the order and to request a hearing on the penalty.(29) The Administrative must set aside the order and provide this hearing if the evidence presented by the petitioner is deemed material and was not considered during the issuance of the order.(30) If EPA denies the petition, it must provide notice and the reasons for the denial to the petitioner and must also publish both in the Federal Register.(31) Judicial review of the penalty assessment order is available up to thirty days after the order is issued.(32) Both the person who was assessed the penalty and any person who commented on the proposed penalty may seek this avenue of review.(33)

Although the statute contains many provisions that allow for administrative and judicial review to challenge EPA's penalty assessment, the amendments do limit when citizens can independently file suit against alleged violators. The limitations are found under [sections] 309(g)(6) and are as follows:

[A]ny violation--

(i) with respect to which the Administrator or the Secretary has commenced

and is diligently prosecuting an action under this subsection,

(ii) with respect to which a State has commenced and is diligently

prosecuting an action under a State law comparable to this subsection, or

(iii) for which the Administrator, the Secretary, or the State has issued a

final order not subject to further judicial review and the violator has,

paid a penalty assessed under this subsection, or such comparable State law,

as the case may be,

shall not be the subject of a civil penalty action under . . . section 1365

of this title.(34)

While subparagraph (A) of [sections] 309(g)(6) identifies three circumstances that preclude a citizen suit, subparagraph (B) creates two exceptions to the preclusion in paragraph (A): 1) if the citizen suit is filed before commencement of an action under [sections] 309(g),(35) or 2) if the citizen has given notice of an intent to sue before commencement of an action under [sections] 309(g) and actually files the suit within 120 days after such notice is given.(36) These limitations raise some interesting issues as this chapter will later discuss.(37)

Section 309(g)(6) has raised many questions in the courts. Because the language is unclear, there now exists a conflict among the circuits over the interpretation of [sections] 309(g)(6). Case law dealing with these issues, including the two recent Ninth Circuit cases, demonstrates this conflict and the various issues that arise.

IV. BACKGROUND CASES

In UNOCAL,(38) the Ninth Circuit discussed two leading cases that had previously decided issues under [sections] 309(g)(6). One took a broad view of the preclusion provision(39) and the other a narrow view of the preclusion provision.(40) Because of the discussion of these cases in the UNOCAL decision and also because the cases serve as an indicator of the conflicts between the circuits, this chapter will discuss both of these decisions below.

A. North and South Rivers Watershed Association, Inc. v. Town of Scituate 

The town of Scituate was operating a sewage treatment facility that discharged pollutants into nearby water without a National Pollution Discharge Elimination System (NPDES) permit.(41) In 1987, the Massachusetts Department of Environmental Protection (DEP) issued an administrative order to Scituate, requiring development and construction of new wastewater treatment facilities, extensive upgrading of the current wastewater facility, and prohibiting any new connections to its sewage system.(42) DEP elected to forego assessing any penalties, but did reserve the right to do so at a later time.(43) In 1989, while Scituate was in the process of upgrading its wastewater facility and designing a new one, a plaintiff-citizen group filed suit against Scituate, charging a violation of the Clean Water Act (CWA) and seeking civil penalties and declaratory and injunctive relief.(44) The plaintiff's claim addressed the same violations as those addressed by the State's ongoing administrative order.(45) The district court held in favor in Scituate and barred the citizen group's suit based on [sections] 309(g)(6)(A)(u) of the CWA.(46)

On appeal, the First Circuit had to interpret [sections] 309(g)(6)(A)(ii), which bars citizen civil penalty suits under [sections] 505 of the CWA "if the State has `commenced and is diligently prosecuting an action under a state law comparable to' the administrative penalties subsection of the Act."(47) On appeal, the citizen group contended that the state action being prosecuted must seek monetary sanctions in order to bar a citizen suit for penalties.(48) The court disagreed, noting the need for citizen suits disappears once governmental action "begins and is diligently prosecuted."(49)

Requiring the state to specifically demand a financial penalty before a citizen suit is barred would "undermine the supplemental role envisioned for section 505 citizen's suits, `changing the nature of the citizen's role from interstitial to potentially intrusive.'"(50) The court then noted that when the state elected not to utilize penalty provisions, this did not change the comparability between the state's statutory scheme and that found in the federal CWA.(51) Reading the preclusion provision so narrowly ignores two important considerations.(52) First, "[t]he focus of the statutory bar to citizen's suits is not on state statutory construction, but on whether corrective action already taken and diligently pursued by the government seeks to remedy the same violations as duplicative civilian action."(53) Allowing duplicative enforcement actions would result in diverting state resources away from remedying the violation because the state instead must focus on avoiding a duplicative effort.(54) Second, since the goal of the CWA is "to restore and maintain the chemical physical and biological integrity of the nation's waters,"(55) a subsequent citizen suit seeking civil penalties when the state has already begun addressing the problem does not further this goal.(56) The First Circuit concluded that the state's action was an action comparable to [sections] 309(g)(6)(A)(ii) of the CWA.(57)

The citizen group also argued that the state was not diligently prosecuting Scituate.(58) After the court discussed the relationship between governmental action and citizen enforcement actions as analyzed in Gwaltney of Smithfield v. Chesapeake Bay Found.,(59) it stated that "[w]here an agency has specifically addressed the concerns of an analogous citizen's suit, deference to the agency's plan of attack should be particularly favored."(60) Because the state was continuously monitoring Scituate's progress in complying with the administrative order and also because the state still had the possibility of imposing penalties on Scituate, the court found DEP's enforcement action to be diligent prosecution.(61) After also concluding that the preclusion provision of [sections] 309(g)(6)(A) applies not only to civil penalty actions by citizens, but also to claims for injunctive relief, the First Circuit affirmed the district court's decision to preclude the citizen suit.(62)

B. Washington Public Interest Research Group v. Pendleton Woolen Mills 

Pendleton operated a textile milt which created wastewater containing oil, grease, and other pollutants.(63) Pendleton was in violation of the discharge limits set out in its NPDES permit.(64) Thus, EPA issued an administrative compliance order, requiring Pendleton to make any physical improvements to its facility necessary to bring itself into compliance.(65) The compliance order included a threat of sanctions of $25,000 per day for violations of the order.(66) There was some evidence that Pendleton subsequently exceeded its permit limitations. Shortly thereafter, the Washington Public Interest Research Group (WashPIRG) filed a complaint against Pendleton, seeking civil penalties and injunctive reLief.(67) The district court barred WashPIRG's suit under [sections] 309(g)(6)(A)(i) of the CWA because of EPA's compliance action against Pendleton.(68)

On appeal, the Ninth Circuit interpreted section (i) of [sections] 309(g)(6)(A), which bars a citizen suit seeking penalties where the EPA is prosecuting an action under [sections] 309(g). As the court noted [sections] 309(g) deals only with administrative penalties.(69) In this case, EPA did not pursue a penalty under [sections] 309(g), but rather issued a compliance order under [sections] 309(a).(70) The court noted the difference between the two sections; specifically, elaborate public notice and comment procedures are required before issuing an administrative penalty, but not for a compliance order.(71)

Pendleton argued that the court should "look beyond the plain language of the statute" and apply the preclusion provision to administrative compliance actions as well as administrative penalty actions.(72) Noting that the district court adopted the reasoning of the First Circuit in the Scituate case,(73) the Ninth Circuit pointed out that [sections] 309(g)(6)(A)(ii)(74) was at issue in Scituate, whereas [sections] 309(g)(6)(A)(i)(75) was at issue in the present case.(76) Thus, the court did not accept the First Circuit's reasoning that a state compliance action or state penalty action would bar a citizen suit.(77)

Pendleton also attempted to persuade the court with the policy arguments from Gwaltney(78) and Scituate, which indicated the supplemental role of citizen suits to governmental enforcement actions.(79) The Ninth Circuit responded that "general arguments about congressional intent and the EPA's need for discretion cannot persuade us to abandon the clear language that Congress used when it drafted the statute."(80) It also noted that Congress could have easily included compliance orders as a bar to citizen suits as it has done in many other environmental statutes.(81) After determining there was no need to decide whether [sections] 309(g)(6) applied to injunctive relief, the court reversed the district court and allowed WashPIRG to pursue its claims against Pendleton.(82)

V. THE NINTH CIRCUIT'S APPROACH IN 1996

Until 1996, the Ninth Circuit had not heard any cases involving provisions (ii) and (iii) of [sections] 309(g)(6)(A). It had only decided the Pendleton case, which discussed provision (i).(83) In 1996, the court was presented with cases involving provisions (ii) and (iii) of [sections] 309(g)(6)(A). The first case on appeal to the Ninth Circuit was the UNOCAL case,(84) and then later the Knee Deep case.(85) The former case involved provision (iii) and the latter provision (ii).

A. Citizens for a Better Environment-California v. Union Oil of California

The Union Oil Company (UNOCAL), along with six other petroleum refineries in the Bay Area, filed a state suit seeking to set aside the orders imposing final selenium limits by the California Regional Water Quality Control Board (Board) on the ground that the Board's listing of the San Francisco Bay as an impaired body of water violated the Clean Water Act (CWA).(86) The refineries and the Board reached a settlement in 1993 whereby the Board would issue a cease and desist order (CDO), which extended the refineries' deadline for meeting the selenium limits from 1993 until 1998.(87) In exchange, the refineries dismissed their lawsuit and made a $2 million payment to the state, to which UNOCAL contributed $780,000.(88) After this settlement, Citizens for a Better Environment (CBE) filed suit against UNOCAL for violating effluent and water quality standards found in its National Pollution Discharge Elimination System (NPDES) permit, UNOCAL then moved to dismiss the action, claiming the action was barred under [sections] 309(g)(6)(A)(iii) of the CWA.(89)

In order for UNOCAL's argument to prevail, it had to prove 1) that the CDO issued by the Board was "a final order not subject to further review," 2) that it had paid a "penalty," and 3) that such penalty was "assessed under [subsection 309(g)], or such comparable state law."(90)

UNOCAL argued that the $780,000 it paid to the Board was a penalty under [sections] 309(g)(6)(A)(iii).(91) The Ninth Circuit found that UNOCAL's $780,000 payment was not a penalty, but a settlement payment made to avoid enforcement action by the Board.(92) It based this conclusion on the fact that the CDO specifically referred to it as a payment and not a penalty, and also that UNOCAL insisted on characterizing it as a payment to avoid any stigma in the public eye.(93) The court's decision that provision (iii) did not apply was supported further by its analysis of the phrase "comparable state law."(94)

UNOCAL also argued that the penalty was assessed under comparable state law because even though the CDO was issued under California Water Code (CWC) [sections]13301, which governs cease and desist orders, and not specifically under [sections] 13385, which gives the Board authority to impose civil penalties, [sections] 13301 was in the "same statutory scheme" as [sections] 13385.(95)

The Ninth Circuit rejected this reasoning, which UNOCAL had taken from the First Circuit in Scituate.(96) The court instead chose to use the reasoning in Pendleton, which held that the bar under [sections] 309(g)(6)(A) (i) did not apply to an administrative compliance order.(97) Note that while Pendleton interpreted the "diligently prosecuting an action under this subsection" language of provision (i),(98) the UNOCAL court adopted Pendleton's reasoning and applied it to provision (iii) of [sections] 309(g)(6)(A).(99) Actually, provision (iii) involves issuance of a "final order" with a penalty assessed "under this subsection, or such comparable State law."(100) As the court in Pendleton points out, these separate provisions are very different creatures.(101) Nonetheless, the court concluded that the reasoning in Pendleton should also apply to [sections] 309(g)(6)(A)(iii), disregarding the First Circuit's concern over the preservation of states' discretion to choose between methods of enforcement.(102)

The court held that "comparable State law" does not mean an enforcement provision found within the scheme of state law that is comparable to that found in the federal law, but rather that the penalty must have been assessed under that specific provision of state law that allows for administrative penalties.(103) The court concluded that if it followed the reasoning of Scituate, it would essentially be giving broader preclusive effect to state administrative actions than to EPA actions, and neither the statute nor the legislative history indicated such a dichotomy was intended.(104)

The court also held that [sections] 309(g)(6)(A)(ii) did not apply because the Board's enforcement action had been concluded and thus the Board was no longer "diligently prosecuting an action" under comparable state law.(105) Therefore, since the Board was not acting pursuant to state law comparable to [sections] 309(g), its enforcement actions against UNOCAL did not preclude CBE's suit. The Ninth Circuit affirmed the district court's denial of UNOCAL's motion to dismiss, and the citizen suit was allowed to proceed.(106)

B. Knee Deep Cattle Co., Inc. v. Bindana Investment Co.

Bindana owned an RV park and sewage treatment plant adjacent to Knee Deep's property, a cattle and feeder operation.(107) Bindana's NPDES permit allowed it to discharge treated effluent into the creek that ran between Bindana's and Knee Deep's property.(108) After Bindana failed to meet its permit requirements, the Oregon Department of Environmental Quality (Oregon DEQ) issued a Notice of Noncompliance, followed by a Notice of Permit Violation and a Notice of Civil Penalty (NCP). Oregon DEQ also required Bindana to submit a plan to bring the facility into compliance.(109) The NCP required Bindana to pay a $1400 penalty for a specific violation resulting from the pumping of raw sewage into the creek.(110) The following year Bindana and Oregon DEQ reached a settlement agreement whereby DEQ issued a Stipulation and Final Order (SFO) that required a $175,000 to $200,000 upgrade of the sewage treatment plant and set interim discharge limits until completion of the upgrade.(111) The SFO also set penalties for any violation of the intern limits, but did not assess any penalties for past violations.(112) When Bindana failed to comply with the limits in the SFO, Knee Deep filed a complaint seeking civil penalties and injunctive relief.(113)

The district court had concluded that [sections] 309(g)(6)(A)(u) precluded Knee Deep's action against Bindana.(114) On appeal, the Ninth Circuit had to decide whether Oregon DEQ had commenced and was diligently prosecuting an action under state law comparable to [sections] 309(g).(115)

The court noted that it had "previously determined that for [sections] 309(g)(6)(A) to apply, the comparable state law must contain penalty provisions and a penalty must actually have been assessed under state law."(116) But the court in UNOCAL made this statement in the context of provision (iii) of [sections] 309(g)(6)(A), which specifically requires a penalty, whereas Knee Deep involved provision (u) of [sections] 309(g)(6)(A), which does not specifically state a penalty must be assessed. Nonetheless, the court found UNOCAL controlling on this issue.(117)

The Ninth Circuit held that Oregon was not diligently prosecuting an action when Knee Deep filed suit.(118) It reasoned that, just like the CDO in UNOCAL, the SFO in this case was issued before Knee Deep filed suit; thus, there was no action being prosecuted.(119) In UNOCAL, however, the state DEQ took no action against the discharger once the CDO was issued.(120) On the other hand, Oregon DEQ issued Penalty Demand Notices (PDN) to Bindana not only some time after they issued the SFO, but also a month after Knee Deep filed its suit.(121) These actions by Oregon DEQ were certainly on-going actions. Perhaps the court did not consider this on-going action to be diligent enough to bar Knee Deep's suit, but we cannot determine this from the one sentence the court supplied us addressing this issue.(122)

The court also quickly determined the issue of comparability. The court pointed out that Oregon's administrative penalty section retained a provision that was comparable to the federal provision, but the SFO, as the CDO in UNOCAL, was not issued under the comparable section.(123) The SFO specifically provided that it did not assess any penalty for the past violations.(124) Therefore, the court held Oregon DEQ's actions were not pursuant to state law comparable to [section] 309(g).(125) By ruling out any arguments that the preclusion provision applied, the Ninth Circuit allowed Knee Deep to pursue its claims against Bindana.(126)

VI. CURRENT CONFLICT OVER THE MEANING OF THE PRECISION PROVISION

Because the language of [section] 309(g)(6) can be construed in various ways, a conflict among the circuits has developed. Furthermore, because it is not clear what the purpose of the bar is and because certain language of the bar is arguably ambiguous, the conflict will continue. This conflict in the courts needs to be resolved--either by Congress or the Supreme Court.

A. Two Schools of Thought on the Interpretation of [section] 309(9)(6)

There are essentially two separate schools of thought as to when the preclusion provision of [section] 309(g)(6) applies. One interpretation takes an expansive view and is more policy based, while the other interpretation. followed by the Ninth Circuit, is more liberal, taking a very narrow view of when a citizen suit should be barred. Neither interpretation is without fault.

The broad interpretation could result in an abuse of the preclusion defense, which would hinder the effectiveness of citizen suit enforcement. This abuse could occur because courts might allow policy arguments too often and neglect the procedural safeguards found in the federal provision, resulting in the preclusion of a citizen suit, which might have been more effective than the simple compliance order that precluded it.(127) On the other hand, the narrow interpretation could have the effect of removing state discretion to choose enforcement methods, and discouraging defendants from settling with agencies if defendants have no assurance that they will not be subsequently sued for the same violation.

B. Cases and Reasoning of the Broad View of the [section] 309 Bar

Courts that take the broad view typically look at the overall scheme of the state statute under which the enforcement action was taken, not the particular penalty provision of the statute, and determine whether the statute as a whole has goals comparable to those in the federal provision of the Clean Water Act (CWA).

The First Circuit, for example, pointed out in Scituate that "[t]he focus of the statutory bar to citizen's suits is not on state statutory construction, but on whether corrective action already taken and diligently pursued by the government seeks to remedy the same violations as duplicative civilian action."(128) Therefore, the court noted that as long as the statute contains a penalty provision, a state's decision not to use that particular penalty provision, but instead to pursue enforcement under another coordinate part of the same statute, will not "alter the comparability of the State Act's statutory scheme to the scheme found in the Federal Act."(129)

The courts that generally follow the reasoning of the Scituate court have extended the citizen bar in various manners. One court has held that differences in procedural comparability are allowable between the state and federal provision because "comparable" does not mean identical.(130) Another court decided that the states should have discretion in selecting the specific mechanisms of their enforcement program, and as long as the overall enforcement goals of the state provision are the same as the federal CWA, then the preclusion provision should apply.(131) Still another court held that if the enforcement proceeding causes the violations alleged by the citizens to cease without likelihood of recurrence, then the basis for the suit is eliminated, and the action is barred because a citizen group cannot seek penalties the government elected to forego.(132) Thus, these courts in the broad view category have developed a wide variety of justifications for using [section] 309(g)(6)(A) to preclude a citizen suit.

Underlying the reasons these courts use for precluding citizen suits is the policy of preventing duplicative suits as set out in the Gwaltney decision.(133) In Gwaltney, a citizen group sued the operator of a meat-packing plant for violations of its National Pollution Discharge Elimination System (NPDES) permit, but the last reported violation had occurred weeks before the group filed its suit.(134) The issue in that case was whether [section] 505 of the CWA allows citizens to seek civil penalties for "wholly past violations."(135) After considering the reasoning in cases from the First, Fourth, and Fifth Circuits,(136) the Supreme Court settled the split between these circuits by concluding that "[section] 505 does not permit citizen suits for wholly past violations," but does "confer[ ] jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation[s]."(137) The Supreme Court set out a number of reasons as to why this interpretation was correct, but the one used most by the courts following the broad interpretation of the citizen suit bar is the idea of the supplemental role of citizen suits to governmental actions.(138) The Court gives an example of how this supplementary role would be undermined if they were to allow citizen suits for wholly past violations:(139)

Suppose that the Administrator identified a violator of the Act and issued a

compliance order under [section] 309(a). Suppose further that the

Administrator agreed not to assess or otherwise seek civil penalties

on the condition that the violator take some extreme corrective action,

such as to install particularly effective but expensive machinery, that

it otherwise would not be obliged to take. If citizens could file suit,

months or years later, in order to seek the civil penalties that the

Administrator chose to forgo, then the Administrator's discretion to

enforce the Act in the public interest would be curtailed considerably.

The same might be said of the discretion of state enforcement authorities.

Respondents' interpretation of the scope of the citizen suit would change

the nature of the citizens' role from interstitial to potentially intrusive.

We cannot agree that Congress intended such a result.(140)

Thus, many of the courts in the broad-view category further support their conclusion to apply the bar by citing the language and reasoning in Gwaltney.(141)

C. Cases awl Reasoning of the Narrow View of the [section] 309 Bar

Courts taking the narrow view focus on the procedural requirements for public notice and comment of the state law and contrast it with those in [section] 309(g). They do not allow a mere compliance order to preclude a citizen suit, and their policy concern is to avoid impeding effective citizen suits.

For example, the Ninth Circuit in Pendleton easily interpreted [section] 309(g)(6)(A)(i)'s clear language of "action under this subsection" to mean an administrative penalty action because [section] 309(g) specifically involves administrative penalty actions and not compliance orders.(142) The court states: "[o]ur reading of the statute's dear language is underscored by evidence that if Congress had intended to preclude citizen suits in the face of an administrative compliance order, it could easily have done so, as it has done in certain other environmental statutes."(143) The court noted that the language of the statute made no reference to an administrative compliance order.(144)

Some courts interpreting the other two provisions of [section] 309(g)(6)(A), whose language is arguably not as clear, bolster their plain language arguments with policy arguments. In refusing to apply the bar, one court noted the integral part in the overall enforcement scheme that citizen suits play.(145) Other courts focus on the procedural requirements of public notice and comment in determining whether the preclusion provision applies.(146) An Ohio court allowed a citizen group to proceed with its suit, noting how [section] 309(g) included specific safeguards to protect the public's right to participate in the enforcement process; safeguards which were discretionary under state law.(147) Thus, the courts taking a narrow view of the citizen suit bar offer numerous arguments for strictly interpreting [section] 309(g)(6)(A).

VII. WHAT IS REQUIRED FOR COMPARABILITY?

Whether the preclusion provision of [section] 309(g)(6)(A) applies often hinges on whether the state law under which a state agency took enforcement actions is comparable to [section] 309(g). The issue of public notice and participation is integral to the interpretation of state comparability. Courts have varied in their interpretations of what notice and comment procedures are required in the state provision for it to be considered comparable to [section] 309(g). An analysis of these cases will reveal how drastic these differences are, further supporting the need for Congress to clarify the meaning of comparable state law.

As previously discussed, the federal law under [section] 309(g) contains procedures requiring public notice of and opportunity to participate by interested parties.(148) The controversy between the courts arises over how closely the state provisions should follow these public participation procedures in order to be comparable.

The legislative history does offer some assistance on this issue. Senator Chafee (R-R.I.) stated: "in order to be comparable, a State law must provide for a right to a hearing and for public notice and participation procedures similar to those set forth in section 309(g)."(149) The court in Atlantic States Legal Foundation v. Universal Tool & Stamping Co.(150) used Senator Chafee's remarks to require the state law provisions on public notice and participation procedures to closely parallel every facet of the federal provisions in [section] 309(g).(151) The Vygen court agreed with the Atlantic States court in requiring that state laws "contain safeguards comparable to those of [section] 1319(g)."(152) The safeguards must be "mandatory, rather than permissive, if state law is to be considered comparable."(153) Thus, these courts looked at the state provisions critically to determine if they contain the same procedures for public participation as [section] 309(g) when determining comparability.

Other courts, however, have been quick to find that these requirements are not mandatory in order to establish comparability. One court noted that state provisions are comparable as long as "the overall regulatory scheme affords significant citizen participation, even if the state law does not contain precisely the same public notice and comment provisions as those found in the federal CWA."(154) Another court even gave a policy reason as to why public notice and participation rights need not be mandatory under State law in order to find comparability--to avoid subjecting the violator to dual enforcement actions for the same violation.(155)

The court in California Sportfishing held mandatory public notice and participation was not essential to a finding of comparability.(156) The plaintiffs had argued that the California state provisions were not comparable because allowing the defendant to waive its right to a hearing deprived the plaintiffs of their right to public participation.(157) The court responded that [section] 309 "does not expressly guarantee citizens the right to participate in public hearings on administrative penalty actions."(158) Subsection 309(g)(4) allows citizens 1) public notice and opportunity to comment, 2) the right to present evidence if a hearing is held, and 3) the right to petition for a hearing if one is not held.(159) Essentially, once public notice is given, the public has the burden to comment in order to trigger its right to a hearing. The right to a hearing, however, is discretionary and depends on whether the Administrative finds the public's information "material" or finds the information was not considered earlier.(160)

These cases illustrate the various interpretations of the requirements of public notice and participation needed in order to establish comparability. They also indicate a need for Congress to clarify the meaning of the ambiguous term "comparable state law" to enable courts to uniformly interpret the provisions of the bar on citizen suits.

VIII. IS A PENALTY REQUIRED?

Whether a court will apply the preclusion provision of [section] 309(g)(6)(A) also depends upon whether the court requires that the agency action entail monetary penalties. Courts answer the question of whether the agency must be pursuing financial penalties (or have assessed a penalty) differently, depending on the particular provision of [section] 309(g)(6)(A) they are applying. The language of these provisions differs considerably.(161)

Because provision (iii) of [section] 309(g)(6)(A) contains the words "violator has paid a penalty, most courts agree that a penalty is required to bar a citizen suit.(162) In addition, the courts seem to have no problem agreeing that provision (i) of [sections] 309(g)(6)(A) only applies when the Environmental Protection Agency (EPA) has brought an administrative penalty action.(163) Although provisions (ii) and (i) may seem similar, there is a crucial difference.(164) The language "an action comparable to this subsection," which has created a split among the circuits as to the meaning of comparability, is not found in [sections] 309(g)(6)(A)(i).(165) "The term `this subsection' [of provision (i)] obviously refers to [sections] 1319(g) which provides for administrative penalties."(166) Thus, the only controversy that exists on this issue relates to the interpretation of [sections] 309(g)(6)(A)(ii).

The split over provision (ii) occurs between those courts that narrowly interpret the preclusion provision and those that take a more expansive view. The courts taking the broad view, which often rely on the reasoning in Scituate and the policy in Gwaltney, hold that if the state agency pursuing the enforcement proceedings has the power to seek penalties, the bar under [sections] 309(g)(6)(A)(ii) will apply regardless of whether the agency exercised its discretion not to assess any penalties. As discussed previously,(167) the First Circuit in Scituate did not require that the state agency be pursuing monetary sanctions under the penalty provisions of the state statute.(168) The court noted that the state agency was already taking steps to ensure compliance and that duplicative actions, specifically those seeking financial penalties, not only failed to assist the agency in furthering the goals of the Clean Water Act (CWA), but also impeded the process.(169) Along these lines, one court stated "it cannot reasonably be argued that only when a penalty is actually imposed that a citizen suit is precluded. Such an interpretation would unnecessarily undermine state and local enforcement efforts."(170) This court held that previously issued orders from the state agency, which did not impose penalties but reserved the right to do so, could preclude the citizen suit under [sections] 309(g)(6)(A)(ii).(171) Yet another court held that [sections] 309(g)(6)(A)(ii) would bar a citizen suit "where a state agency conducting enforcement proceedings against the defendant has authority to assess civil penalties, regardless of whether the agency has actually assessed such penalties."(172) Thus, a court taking the broad view will apply provision (ii) of [sections] 309(g)(6)(A) as long as the state agency has taken some action against the violator and has the power to impose administer penalties under its state statute.

The line of cases taking the narrow view only precludes a citizen suit under [sections] 309(g)(6)(A)(ii) if the state agency is actively pursuing a financial penalty. For example, the district court in Friends of Santa Fe County v. LAC Mineral, Inc.(173) held that the state must be pumping an administrative penalty action that is comparable to [sections] 309(g).(174) Here, the defendant New Mexico Environmental Division (NMED), owners and operators of an old gold mine and overburden pile, and the plaintiffs participated in various public meetings to renew and modify the defendants permit, which had already cost the defendants over $2.5 million in remedial efforts and monitoring obligations.(175) The court held that the citizens suit was not barred because NMED was not seeking administer penalties and [sections] 309(g)(6)(A)(ii) "clearly" requires that the state "must . . . be diligently pursuing a penalties action comparable to section 1319(g)."(176) The court discussed the two "camps" of courts interpreting the penalty requirements of [sections] 309(g)(6) in general.(177) It concluded that "[s]ection 1319(g)(6)(A)(ii) is narrowly drawn; its preclusionary effect applies only when the EPA . . . or a state is in the process of collecting or has already collected administrative penalties."(178) Another court also made it very clear "the bar has a simple and straightforward effect when the government is seeking penalties, citizens may not."(179) Thus, the more liberal courts, which take a narrow view of the bar, require the state agency to be pursuing administrative penalties.(180)

IX. PURPOSE OF THE BAR AND LIMITATIONS ON THE BAR

Whether the bar of [sections] 309(g)(6)(A) applies to injunctive relief raises some interesting questions as to the purpose behind the preclusion provisions, because either the broad view or the narrow view of the interpretation of [sections] 309(g) could be considered correct depending on how the courts construe the purpose behind the bar. Is the purpose only to prevent double penalties, or is it also to prevent further injunctive remedy by the citizen groups? The courts are split on the issue of whether the bar applies to citizen suits seeking injunctive relief.(181)

The legislative history states that the limitation on citizen's suits "would not apply to 1) an action seeking relief other than civil penalties (e.g., an injunction or declaratory judgment); 2) an action under [sections] 505(a)(1) of this Act filed prior to commencement of an administrative civil penalty proceeding for the same violation; or 3) a violation which has been the subject of notice of violation under [sections] 505(b)(1) of this Act prior to initiation of the administrative penalty process."(182) Because this language indicates injunctive relief was intended as a limitation to the bar, it arguably indicates that the object of the bar was only to prevent double penalties. It is interesting, however, that limitations number two and three above were included in the final wording of [sections] 309,(183) whereas limitation number one specifically addressing injunctive relief was not included in these provisions. No case has addressed this discrepancy or its affect on the purpose of the preclusion provision.

In addition, if the purpose of the preclusion provision was to prevent duplicative suits and prevent defendants from being fined twice for the same violation, it is also curious that Congress even included limitations two and three listed above. These provisions essentially allow a defendant to not only be sued twice for the same violations, but also to be assessed civil penalties twice for the same violations, as long as the citizen suit was filed before the administrative action commenced or the citizen gave notice of the suit before the action was commenced.(184) In fact, in situations like these, after the discharger has paid a penalty for its violations, the citizen suit will continue, usually resulting in a settlement where the discharger pays an even higher penalty.(185)

This result does not seem consistent with Congress' "desire to avoid subjecting violators of the law to dual enforcement actions or penalties for the same violation."(186) The "competing concern" of preventing any "obstacles in the path of such citizen suits" seems to be accommodated by the provisions that allow for citizen participation in assessing the penalty and that allow citizens to appeal the decision to a court.(187) One explanation for allowing these duplicative proceedings is that "administrative agencies cannot provide relief completely comparable to that of a court."(188) Nonetheless, because defendants have no assurances that they will not be sued for the same violation, they are not only discouraged from settling with agencies, they also have no incentives for self-policing.(189)

It appears, however, that the limitations on the bar in subparagraph (B) of [sections] 309(g)(6) may only apply to federal administrative actions because the provision only limits "an action under this subsection"(190) and does not include the language `under this subsection or comparable state law' or any language similar to that found in the preclusion provisions of [sections] 309(g)(6)(A). Most courts overlook this language and simply assume that the limitation applies to state as well as federal actions.(191) However, at least one court has held that the limitations on the bar apply only to federal actions as the language states.(192) If courts did apply the limitations to the bar only to federal actions, it could slightly alleviate the concern of duplicative proceedings. However, this would seemingly create a dichotomy giving more deference to a state agency's action than to a federal action--a result Congress may or may not have intended.(193) Therefore, this chapter suggests that Congress should clearly set out the purpose behind the [sections] 309 bar and its limitations.

X. RESOLUTION

If Congress intended [sections] 309(g)(6)(A) to give greater autonomy to the federal scheme and not allow the state enforcement authorities to choose enforcement methods at their discretion, then it needs to specifically indicate that the preclusion of [sections] 309(g)(6) applies only to administrative penalty actions. It should also provide that this subsection can never apply to a compliance order, even if this order required a defendant to make a large payment to the agency as a settlement provision. However, if greater autonomy was intended for the federal scheme, then why do [subsections] 309(b)(6)(B)(i) & (ii) only place limitations on the federal actions and not on the state actions? Congress needs to clarify its intent on this point.

Because the preclusion provision falls under the section labeled "administrative penalties," the bar under [sections] 309(g)(6) should only apply to enforcement actions when an agency is seeking penalties. But if the agency seeking a penalty elects to forgo this penalty and settles with the party, perhaps requiring the completion of a Supplemental Environmental Project or other mitigation project instead, the result is not so dear. It seems odd that Congress could have intended that a facility the Environmental Protection Agency (EPA) had settled with, instead of seeking penalties for minor violations, would be subject to further litigation from a citizen suit. while a facility with greater violations, against whom EPA imposed heavier administrative penalties, would not be subject to a later citizen suit This interpretation would reward facilities with poorer compliance records. Again, Congress needs to settle this point. Once this is estate fished, courts should focus on whether the agency provided adequate safeguards for public participation in each case and ensure the penalty assessed was adequate, instead of splitting hairs as to under exactly which provision of state law the agency assessed the penalty. If the state assessed an adequate penalty and safeguards for public participation are found within the particular state law used, then comparability should not be an issue and the citizen bar should apply.

Congress should define comparable state law to require the following safeguards that parallel the federal provisions: 1) citizens should be given public notice and opportunity to comment, 2) they should be able to present evidence if a hearing is held, if they previously took part in the commenting procedure, and 3) if a hearing is not held, citizens should also have the right to petition for a hearing to be granted if the information presented is material and was not previously considered. By clearly delineating exactly what public notice and participation is required, [sections] 309(g)(6)(A) would leave no room for various interpretations.

Finally, Congress should indicate that the preclusion provision applies only to citizen suits seeking penalties and not to actions seeking declaratory and injunctive relief. This would be consistent with the purpose of the administrative penalty provision itself, which is to assess penalties for past violations. Congress could easily do this by adding another limitation to the bar under subparagraph (B). A defendant could not possibly raise any arguments of duplicative enforcement actions when a citizen later files a suit for injunctive relief for further emissions of pollutants, even if he previously paid a penalty, because he is still violating his permit and should expect such suits. Allowing citizen suits to continue after a penalty has been assessed through provisions (i) and (ii) of subsection 309(g)(6)(B), however, results in the defendant not only being sued twice for the same violation, but also being assessed penalties twice for that same violation. This is an inequitable result and discourages dischargers from cooperating with agencies because they have no assurances that they will not be sued again. If the citizen group feels the penalty was not adequate, the provisions of [sections] 309(g) allow opportunity for their comments and even for an appeal, but they should not be allowed to place a discharger in double jeopardy. Amending this section to clarify these points will enable the courts to interpret these provisions in a more uniform manner.

(1) 33 U.S.C. [subsections] 1251-1387 (1994).

(2) 33 U.S.C. [sections] 1319 (1994).

(3) Id. [sections] 1319(g)(6)(A).

(4) Id.

(5) Id.

(6) 83 F.3d 1111 (9th Cir. 1996).

(7) 94 F.3d 514 (9th Cir. 1996).

(8) See North & S. Rivers Watershed Ass'n Inc. v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991).

(9) See Washington Pub. Interest Research Group (WASHPIRG) v. Pendleton Woolen Mills, 11 F.3d (9th Cir. 1993).

(10) 33 U.S.C. [sections] 1365(b)(1)(B) (1994).

(11) 42 U.S.C. [sections] 7604(b)(1)(B) (1994) ("No action may be commenced...if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States...").

(12) 33 U.S.C. [sections] 1365(b)(1)(1994).

(13) Baughman v. Bradford Coal Co., 592 F.2d 215, 217 (3d Cir. 1979).

(14) Id. at 219; see also Student Pub. Interest Research Group of N.J., Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131 (3d Cir. 1985) (using the same factors to evaluate whether the Board could be characterized as a court, yet ultimately finding it could not).

(15) See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir. 1985); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir. 1987) (both cases holding that a non-judicial action cannot bar a citizen suit).

(16) 33 U.S.C. [sections] 1319(g) (1994).

(17) Id. [sections] 1319(g)(6).

(18) S. Rep. No. 99-50, at (1985).

(19) 33 U.S.C. [sections] 1319(g)(1) (1994).

(20) Amending the Clean Water Act; Hearings on S. 53 and S. 652 Before the Subcomm. on Envtl. Pollution of the Senate Comm. on Env't and Pub. Works, 99th Cong. 9 (1985) (statement of Jack E. Ravan, EPA Administrator for Water).

(21) Id. at 58 (response to question from Senator Mitchell (D-Maine)).

(22) S. Rep. No. 99-50, at 26 (1985).

(23) Id.

(24) 33 U.S.C. [sections] 1319(g)(1) (1994).

(25) Id. [sections] 1319(g)(2).

(26) Id. [sections] 1319(g)(4)(A).

(27) Id. [sections] 1319(g)(4)(B).

(28) S. Rep. No. 99-50, at 28 (1985).

(29) 33 U.S.C. [sections] 1319(g)(4)(C) (1994).

(30) Id.

(31) Id.

(32) Id. [sections] 1319(g)(8).

(33) Id.

(34) Id. [sections] 1319(g)(6)(A).

(35) Id. [sections] 1319(g)(6)(B)(i).

(36) Id. [sections] 1319(b)(6)(B)(ii).

(37) See infra Part IX.

(38) Citizens for a Better Environment-California v. Union Oil Co. of Cal. (UNOCAL), 83 F.3d 1111 (9th Cir. 1996).

(39) North & S. Watershed Ass'n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991).

(40) Washington Pub. Interest Research Group (WASHPIRG) v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993).

(41) Scituate, 949 F.2d at 553.

(42) Id.

(43) Id. at 554.

(44) Id.

(45) Id.

(46) Id. at 555.

(47) Id. (quoting 33 U.S.C. [sections] 1319(g)(6)(A)(ii) (1994).

(48) Id.

(49) Id. (citing Gwaltney of Smithfield v. Chesapeake Bay Found, 484 U.S. 49, 60-61 (1987)).

(50) Id. at 556 (quoting Gwaltney, 484 U.S. at 61).

(51) Id.

(52) Id.

(53) Id.

(54) Id.

(55) Id. (quoting 33 U.S.C. [sections] 1251(a) (1994)).

(56) Id.

(57) Id.

(58) Id. at 557.

(59) 484 U.S. 49 (1987). "`The great volume of enforcement actions [are intended to] be brought by the State[.]' [C]itizen suits are proper only `if the Federal, State, and local agencies fail to exercise their enforcement responsibility.'" Scituate, 949 F.2d at 557 (quoting Gwaltney, 484 U.S. at 60).

(60) Id.

(61) Id.

(62) Id. at 558-59; see infra Part IX (discussing whether the bar applies to injunctive relief).

(63) Washington Pub. Interest Research Group (WASHPIRG) v. Pendleton Woolen Mills, 11 F.3d 883, 884 (9th Cir. 1993).

(64) Id.

(65) Id. at 884-85.

(66) Id. at 885.

(67) Id.

(68) Id.

(69) Id.

(70) Id.

(71) Id. at 885-86.

(72) Id. at 886.

(73) 949 F.2d 552 (1st Cir. 1991).

(74) This section deals with state agency action precluding a citizen suit.

(75) This section deals with federal agency action precluding a citizen suit.

(76) Pendleton, 11 F.3d at 886.

(77) Id.

(78) Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found, Inc., 484 U.S. 49 (1987).

(79) Pendleton, 11 F.3d at 886.

(80) Id.

(81) Id.; see, e.g., Resource Conservation and Recovery Act of 1976, 42 U.S.C. [sections] 6972(b)(2)(B)(iv) (abatement order can bar a citizen suit); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. [sections] 9659(d)(2) (diligent prosecution by EPA to require compliance can bar a citizen suit).

(82) Pendleton, 11 F.3d at 887.

(83) Id. at 883, see discussion supra Part IV.B.

(84) Citizens for a Better Env't-Cal. v. Union Oil Co. of Cal. (UNOCAL), 83 F.3d 1111 (9th Cir. 1996).

(85) Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996).

(86) UNOCAL, 83 F.3d at 1114.

(87) Id.

(88) Id.

(89) Id. at 1115.

(90) Id.

(91) Id.

(92) Id. at 1116.

(93) Id.

(94) Id.

(95) Id. at 1117.

(96) Id. at 1118. In Scituate, the First Circuit reasoned that even if the specific statutory section under which a state issued its order does not contain a penalty provision, the order is under "comparable state law" if it is issued pursuant to a statutory scheme containing a penalty provision, but the state chose to use an alternative enforcement method. See North & S. Rivers Watershed Ass'n v. Scituate, 949 F.2d 552, 566 (1st Cir. 1991).

(97) UNOCAL, 83 F.3d at 1117-18; Washington Pub. Interest Research Group (WASHPIRG) v. Pendleton Woolen Mills, 11 F.3d 883, 886 (9th Cir. 1993).

(98) 33 U.S.C. [sections] 1319(g)(6)(A)(i) (1994).

(99) Id.

(100) Id. [sections] 1319(g)(6)(A)(iii).

(101) Pendleton, 11 F.3d at 886.

(102) UNOCAL, 83 F.3d at 1117-18.

(103) Id. at 1118.

(104) Id. The district court in California Sportfishing Protection Alliance v. City of West Sacramento seems to order to preserve and protect the states' administrative processes from undue interference from the federal scheme. Similarity, Congress may not have 905 F. Supp. 792, 802 (E.D. Cal. 1995).

(105) UNOCAL, 83 F.3d at 1118.

(106) Id. at 1118, 1120. UNOCAL also argued that the CDO issued by the Board effectively modified UNOCAL's NPDES permit to extend the compliance deadline for the selenium limit until 1998, and thus they were not in violation of an effluent standard that CBE could sue to enforce. Id. at 1118-20. The court explained that the extension of compliance deadlines w as similar to an exercise of prosecutorial discretion, and that this did not suspend the limits of the NPDES permit. Id at 1119. The court also noted that there are regulations governing the modifications of NPDES permits, and these procedures were not followed. Id. Therefore, the CDO did not modify the terms of UNOCAL's permit. Id. at 1120.

(107) Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514, 515 (9th Cir. 1996).

(108) Id.

(109) Id.

(110) Id.

(23) Id. at 517.

(24) Id. at 516-17.

(25) Id. at 517.

(26) Id.

(127) Arguably this abuse is already occurring because attorneys know they will probably get a lower penalty through an agency enforcement action than from a citizen suit. Mary J. Houghton & Jeffrey Kimmel, BNA Special Report, The Clean Water Act of 1987, at 57 (1987). They use the preclusion provisions in a defensive manner, and when a concern over a citizen suit arises, the discharger will ask the relevant administrative authority (state or federal) to initiate an enforcement action that could preclude the citizen suit. Id.

(128) North & S. Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552, 556 (1st Cir. 1991).

(29) Id.

(130) Saboe v. Oregon, 819 F. Supp. 914, 917 (D. Or. 1993). The court held that the state and federal statutes were "substantially similar" to constitute comparability, and that the citizen suit could not be allowed because it would "impact the agency's ability to exercise its enforcement responsibilities in the future." Id at 917-18. It further explained that "[i]t is doubtful that an alleged violator would fully cooperate with DSL [Division of State Lands] to resolve a wetlands fill or removal violation if they lacked assurance that the same violation would not be the subject of a citizen's suit in federal court at some later time." Id at 918. See also Sierra Club v. Port of Townsend Paper Corp., 19 . L. Rep. (Envtl. L. Inst.) 20,532, 20,534 (W.D. Wash. May 2, 1988).

(131) Arkansas Wildlife Fed'n. v. ICI Americas, Inc., 29 F.3d 376, 379-81 (8th Cir. 1994). The court held the Arkansas law to be comparable because it "adequately provides a meaningful opportunity for public participation in the enforcement process." Id. at 381. As will be discussed later in Part VII of this chapter, the comparability discussion often hinges on whether the state statute provides adequate public notice and participation.

(132) Atlantic States Legal Found, Inc. v. Eastman Kodak Co., 933 F.2d 124, 127 (2d Cir. 1991) (holding that a settlement between the violator and the State was grounds for dismissing the citizen suit and stating that the CWA should not "prevent state or local authorities from achieving a settlement as to conduct that is the subject of a citizen complaint").

(133) Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

(134) Id. at 52, 54.

(135) Id. at 55

(136) Id. at 54-56.

(137) Id. at 64.

(138) Id. at 60.

(139) Id.

(140) Id. at 60-61. This example given by the Supreme Court seems to support the contention made by various courts that an agency need not be seeking financial penalties in order to bar a citizen suit See infra Part VIII (discussing these cases in more detail).

(141) See Saboe v. Oregon, 819 F. Supp. 914, 916 (D. Or. 1993) (noting citizen suits "are proper only if the federal, state, and local agencies fail to exercise their enforcement responsibility"); Sierra Club v. Colorado Refining Co., 852 F. Supp. 1476, 1483 (D. Colo. 1994) ("Citizen suits are proper only `if the Federal, State and local agencies fall to exercise their enforcement responsibility.") (quoting Gwaltney 484 U.S. 49, 60 (1987)); Arkansas Wildlife Fed'n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th cir. 1994) (stating citizen suits "should not considerably curtail the governing agency s discretion to act in the public interest."); Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 933 F.2d 124, 12.7 (2d cir. 1991) (holding citizens may not "seek to recover fines and penalties that the government has elected to forgo").

(142) Washington Pub. Interest Research Group (WASHPIRG) v. Pendleton Woolen Mills, 11 F.3d 883, 885 (9th Cir. 1993).

(143) Id. at 886; see, e.g., Resource Conservation and Recovery Act of 1976, 42 U.S.C. [sections] 6972(b)(2)(s)(iv) (1994) (abatement order can bar a citizen suit); Comprehensive Environmental Response, Compensation, and liability Act, 42 U.S.C. [sections] 9659(d)(2) (1994) (diligent prosecution by EPA to require compliance can bar a citizen suit).

(144) Pendleton , 11 F.3d at 885.

(145) Molokai Chamber of Commerce v. Kukui, Inc., 891 F. Supp. 1389, 1402 (D. Haw. 1995).

(146) See infra Part VII (discussing in more detail the public participation requirements under [sections] 309(g)).

(147) NRDC v. Vygen Corp., 803 F. Supp. 97, 101 (N.D. Ohio 1992).

(148) 33 U.S.C. [sections] 1319(g)(4) (1994).

(149) 133 Cong. Rec. S1264 (daily ed. Jan. 14, 1987) (remarks of Sen. Chafee (R-R.I.)).

(150) 735 F. Supp. 1404 (N.D. Ind. 1990).

(151) Id. at 1415-17.

(152) Vygen, 803 F. Supp. at 101.

(153) Id. (emphasis omitted); see also Public Interest Research Group of N.J., Inc. v. GAF Corp., 770 F. Supp. 943, 951 (D. NJ. 1991) (holding New Jersey law not comparable to [sections] 309 because it did not provide for public notice and opportunity to participate in the penalty assessment).

(154) Arkansas wildlife Fed'n. v. ICI Americas, Inc., 29 F.3d 376, 381 (8th Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995).

(155) Saboe v. State of Oregon, 819 F. Supp. 914, 918 (D. Or. 1993); see also Sierra Club v. Port of Townsend Paper Corp., 19 Envt'l L. Rep. (Envtl. L. Inst.) 20532, 20534 (W.D. Wash. May 2, 1988) (finding state law comparable even though public participation procedures were not identical noting the "unfair position in which defendants would be placed were they subject to more than one enforcement action for a single permit violation.").

(156) California Sportfishing Protection Alliance v. City of W. Sacramento, 905 F. Supp. 792, 804 (E.D. Cal. 1995).

(157) Id.

(158) Id.

(159) Id.

(160) 33 U.S.C [sections] 1319(g)(4)(C) (1994).

(161) A citizen suit will be precluded in the three instances set out in [sections] 309(g)(6)(A): (i) "The Administrator [of EPA] or the Secretary [of the Army] has commenced and is diligently prosecuting an action under a this subsections," (ii) "a State has commenced and is diligently prosecuting an action under a State law comparable to this subsections," (iii) "the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsections, or such comparable State law." 33 U.S.C. [sections] 1319(g)(6)(A) (1994) (emphasis added).

(162) See Citizens for a Better Environment-California v. Union Oil Co. of Cal., 83 F.3d 1111, 1115 (9th Cir. 1996); United States; v. City of Toledo, 867 F. Supp. 603, 607 (N.D. Ohio 1994). If there is a controversy over provision (iii), it usually entails whether or not the penalty that was paid was assessed under comparable state law, which essentially goes back to the issue of what is comparable state law. See supra Part VII. It is important to note that provision (iii) does not require `diligent prosecution,' as do the first two provisions. Thus, presumably a one dollar penalty could preclude a citizen suit because diligent prosecution is not required. Arguably, the statute safeguards against this occurring by requiring public notice and comment under [sections] 309(g)(4). However, citizen's groups will argue against the effectiveness of this safeguard because they cannot recover attorney's fees under this provision as they can under [sections] 505.

(163) See Washington Pub. Interest Research Group (WASHPIRG) v. Pendleton Woolen Mills, 11 F.3d 883, 885 (9th Cir. 1993); Save Our Bays and Beaches v. City and County of Honolulu, 904 F. Supp. 1098, 1128 29 (D. Haw. 1894); NRDC v. Fina Oil and Chemical Co., 806 F. Supp. 145, 146 (E.D. Tex. 1992); Orange Env't, Inc. v. County of Orange, 811 F. Supp 926, 932 (S.D.N.Y. 1993).

(164) Arkansas Wildlife Fed'n v. Bekaert Corp., 791 F. Supp. 769, 774 (W.D. Ark. 1992).

(165) Id.

(166) Id. at 775.

(167) See supra Part IV.A.

(168) North and S. Rivers Watershed Ass'n. v. Town of Scituate, 949 F. 2d 552 (1st Cir. 1991).

(169) Id. at 556.

(170) New York Coastal Fishermen's Ass'n. v. New York Dept. of Sanitation, 772 F. Supp. 162, 165 (S.D.N.Y. 1901).

(171) Id.

(172) Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 777 F. Supp. 173, 181 (D. Conn. 1991); see also Sierra Club v. Colorado Refining Co., 852 F. Supp. 1476, 1485 (D. Colo. 1994) (barring citizen suit where state satisfied the prosecution requirement although it had not assessed penalties against the refinery in question).

(173) 892 F. Supp. 1333 (D. N. M. 1995).

(174) Id. at 1345.

(175) Id. at 1344-45

(176) Id. at 1345.

(177) Id at 1345-47.

(178) Id. at 1347. It continues with:

"Congress coupled its conferral of regulatory authority to impose

administrative penalties with the bar of section 1319(g)(6)(A) simply

to prevent monetarily penalizing a polluter twice for the same conduct.

Defendants, and many courts, wish to read more into the citizen suit bar

of this subsection than exists. Although their desire is well-founded,

and their policy goals are laudable, their vision cannot be reconciled

with the literal teens of the statute."

Id.

(179) Molokai Chamber of Commerce v. Kukui, Inc., 891 F. Supp. 1389, 1403 (D. Haw. 1995).

(180) Note that some courts frame the issue a little differently. Instead of asking whether or not the agency was seeking financial penalties, some courts focus their analysis on what "type of action" the agency brought. The question then becomes do administrative compliance orders preclude a citizen suit or do only administrative penalty assessments preclude them. For an in-depth analysis of this issue, see Arne L. Leonard, When Should an Administrative Enforcement Action Preclude a Citizen Suit under the Clean Water Act?, 35 Nat. Resources J. 555, 584-93 (1995).

(181) See California Sportfishing Protection Alliance v. City of West Sacramento, 905 F SUPP. 792, 807 (E.D. Cal. 1995); Coalition for a Livable West Side, Inc. v New York City Dep't of Envtl. Protection, 830 F. Supp. 194, 197 (S.D.N.Y. 1993) (both holding that the bar only applies to civil penalty actions and not injunctive relief). But see North & S. Rivers Water-shed Ass'n v. Town of Scituate, 949 F.2d 552, 557-58 (1st Cir. 1991); Arkansas Wildlife Fed'n v. ICI Americas, Inc., 29 F.3d 376, 382 83 (8th Cir. 1994), cert denied, 115 S. Ct. 1094 (1995) (both holding the bar applies to declarative and injunctive relief in addition to civil penalties because allowing these other suds could result in interference with agency action or simply unnecessary duplication); New York Coastal Fisherman's Ass'n v. New York City Dep't of Sanitation, 772 F. Supp. 162, 165 (S.D.N.Y. 1991) (discussing limitations on when citizen suds may be pursued); see also Steven Russo, States, Citizens, and the Clean Water Act Stale Administrative Enforcement and the Diligent Prosecution Defense, 4 N.Y.U. Envtl. L. J. 211, 216-21 (1995) (discussing these issues in more detail).

(182) S. Rep. No. 99-50, at 28 (1986); see also Orange Env't, Inc. v. County of Orange, 860 F. Supp. 1003, 1018 (S.D.N.Y. 1994).

(183) 33 U.S.C. [sections] 1319(g)(6)(B)(i) and (ii).

(184) Public Interest Research Group of NJ., Inc. v. Hercules, Inc, 830 F. Supp. 1525, 1538-39 (D. N.J. 1993), aff'd in part, rev'd in part, 50 F.3d 1239 (3d Cir. 1993) (refusing to bar citizen suit seeking additional penalties even though the state had already imposed civil penalties upon the defendant).

(185) For example, after Public Interest Research Group of New Jersey, Inc. v. Elf Atochem N. Am., Inc., 817 F. Supp. 1164 (D. N.J. 1993) was decided and Elf Atochem had already been fined $275,000 by the State, PIRG seffled with Elf Atochem in its citizen suit for a $1,017,500 penalty. Telephone Interview with Cathy Milliam, Attorney, Terris, Pravlik & Wagner (Nov. 6, 1996).

(186) S. Rep. No. 99-50, at 26 (1986)

(187) Id.

(188) Public Interest Research Group of N.J., Inc v. Witco Chem. Corp., 21 Envtl. L. Rep. (Envtl. L. Inst.) 20,820, 20,822 (D. N.J. 1990).

(189) There is a question whether adding a waiver in the provision would balance the equities, such that if a citizen group fails to comment or appeal and the agency assessed a penalty, the group would waive its right to later bring an action.

(190) 33 U.S.C. [section] 1319(g)(6)(B) (1994)

(191) See Arkansas Wildlife Fed'n v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994).

(192) California Sportfishing Protection Alliance v. City of West Sacramento, 905 F. Supp. 792, 802 (E.D. Cal. 1995) ("[S]ubsection B only addresses the lifting of the bar in the Circumstance of a federal administrative penalty action by the Administrator of EPA or Secretary of the Army.").

(193) See supra note 104 for one court's answer to this dichotomy.

Heather L. Clauson, Clark College, J.D. expected 1998; B.S. 1995, Murray State University. The author wishes to thank Professor William F. Funk for his assistance with this Chapter.